AOS denied due to priority date? (split)

[alps34 17]

2 minutes ago, Chardon Ne' said:

Exactly they may just tell him that he was not eligible to file at this time as the visa was not available. We dont not know. He is under the impression that his overstay is the reason, which I know is not because I too am adjusting from B1 visa.

Friends;

 

There are two charts in the visa bulletin for F2A category (Spouse of LPR)

I am eligible to go ahead and AOS according to the chart in October. Yes, visa would not be available but according to Obama's law declared in Sept 2015, I am eligible to go ahead and use the DATES FOR FILING instead of FINAL ACTION DATES.

This shouldn't be the reason.

[NikLR 13,220]

6 hours ago, alps34 said:

 

Yes, I came by visa - nothing was illegal.

The only thing: USCIS package receipt date: 3rd of October and my visa expiration date: 7th of October

But the package have been received prior to my visa expires.

They also have send the combo card (EAD and AP) without any problem....

It is interesting. I hope this will not give any harm to my EAD.

With your I-485 being denied your EAD is invalid.  

 

6 hours ago, Chardon Ne' said:

I just find it odd that they would deny the I485 without denying the I130 considering that that is the reason you were eligible to file the 485 in the first place. The dates should not matter in that you are applying for adjustment of status with an LPR spouse, what type of Visa? You may not have come in illegally but depending on the Visa type you may have applied improperly for AOS with an LPR. Being here now while i130 is pending may have affected that as the rules are different for an LPR vs USC

The bolded part is inaccurate unfortuneatly.  It very much matters.  Just because you are a spouse of an LPR doesn't mean you can adjust your status.  You must wait for the priority date on the I-130 to become current or else the I-485 will be denied. 

There are different priority dates for visas and AOS however, I've seen this before where the AOS was denied until the priority date of the visas were valid. 

The OP can adjust from any visa type and once someone is allowed in the country committing visa fraud by entering under false pretenses is off the table as a means of denial. 

[discoverusa 229]

57 minutes ago, NikLR said:

With your I-485 being denied your EAD is invalid.  

 

The bolded part is inaccurate unfortuneatly.  It very much matters.  Just because you are a spouse of an LPR doesn't mean you can adjust your status.  You must wait for the priority date on the I-130 to become current or else the I-485 will be denied. 

There are different priority dates for visas and AOS however, I've seen this before where the AOS was denied until the priority date of the visas were valid. 

The OP can adjust from any visa type and once someone is allowed in the country committing visa fraud by entering under false pretenses is off the table as a means of denial. 

I agree. My guess is the he sent AOS before the priority date was current. Can OP clarify what Obama law says you can send AOS earlier than priority date. I am not saying it doesn't exist. I just never heard about it. I am very curious how this turns out.

 

How soon your spouse can become a citizen?

[geowrian 22,335]

1 hour ago, NikLR said:

The OP can adjust from any visa type and once someone is allowed in the country committing visa fraud by entering under false pretenses is off the table as a means of denial.

I thought that was only for the IR of a USC, not a LPR (http://www.hummelaw.com/Blog/2014/January/The-30-60-Day-Rule.aspx).

Edited January 7, 2017 by geowrian

[NikLR 13,220]

No as long as the priority date is current and they are not out of status, they can send the AOS.  If they are out of status they cannot. Overstay is forgiven for spouses of USC but not LPR as I understand it. 

 

Once someone is allowed in the country, CBP has determined they do not have preconceived intent.  Even if they say at the interview. "hey I intended to" they can't be denied for that reason.  The USCIS would find another reason to deny. 

[NikLR 13,220]

OP you do not have a timeline.  Please fill one out asap for continued assistance.  Thank you. 

[geowrian 22,335]

13 minutes ago, NikLR said:

No as long as the priority date is current and they are not out of status, they can send the AOS.  If they are out of status they cannot. Overstay is forgiven for spouses of USC but not LPR as I understand it. 

 

Once someone is allowed in the country, CBP has determined they do not have preconceived intent.  Even if they say at the interview. "hey I intended to" they can't be denied for that reason.  The USCIS would find another reason to deny. 

Thanks for the info.

 

Hmm...has this actually been tested with a case that you can share? It runs contrary to the reference I posted. I understand the 30/60/90 day rule is a DOS policy, not USCIS, but does that mean it actually cannot be used? See here:

http://myattorneyusa.com/uscis-and-the-3060-day-rule-and-the-effect-of-preconceived-intent-on-adjustment-of-status

"Although the 30/60 day rule is not a “rule” in the sense that it exists in statutes or regulations, it is likely that a nonimmigrant who enters on B status will be found to be inadmissible for misrepresentation if he or she violates status in a blatant way within 30 days of entry. Consular officers are directed to assume misrepresentation in these cases, and the USCIS has applied the 30/60 day analysis, although it is not bound by it. Furthermore, in the adjustment of status context, “preconceived intent” is considered a “serious adverse factor” (see the Matter of Blas) weighing against adjustment of status even when the statements of a nonimmigrant and his or her subsequent actions do not rise to the level of grounds for inadmissibility for misrepresentation of a material fact. "

 

Anyway, I agree that the PD is probably the main issue here. If his visa is expired and AOS is actually denied, then he is now out of status. The EAD and AP are no longer valid, and he risks deportation. He should probably secure legal counsel and not travel outside the US.

Edited January 7, 2017 by geowrian

[NikLR 13,220]

Actual cases I've seen on the board.  No but I've been quoted these: Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980), Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1981), and Matter of Battista, 19 I&N Dec. 484 (BIA 1987) multiple times on the board by several members.  @aaron2020 comes to mind. @Hypnos as well. 

[geowrian 22,335]

1 minute ago, NikLR said:

Actual cases I've seen on the board.  No but I've been quoted these: Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980), Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1981), and Matter of Battista, 19 I&N Dec. 484 (BIA 1987) multiple times on the board by several members.  @aaron2020 comes to mind. @Hypnos as well. 

Hopefully they chime with specific examples as I'm curious. All the past ones I've seen from them were also covered by the exemption for IR of a USC rulings.

[NikLR 13,220]

The main difference, as I understand it, between the LPR spouse and USC spouse is a) the visa availability and b) overstay is not forgiven.  Lawyers like to quote the 30/60 rule, but I've yet to see someone denied their AOS because they file 1 or 10 or 20 days after arrival.  

[geowrian 22,335]

1 minute ago, NikLR said:

The main difference, as I understand it, between the LPR spouse and USC spouse is a) the visa availability and b) overstay is not forgiven.  Lawyers like to quote the 30/60 rule, but I've yet to see someone denied their AOS because they file 1 or 10 or 20 days after arrival.  

Yeah. But the lack of evidence is not evidence itself. As noted in those sources, it is not technically a rule but can be used as a tool at the CO's discretion. That's why I'd love to see some cases where it was found to not be valid. I've been doing some extension searching and those stated rulings always explicitly reference a USC. I just wonder if it's been tested with a LPR instead. I would assume so, but I can't find anything. Yeah, lawyers aren't exactly the most trustworthy people as I've seen time and time again on VJ.

[NikLR 13,220]

Generally speaking you don't find a lot of LPR adjusting status.  They have to be in the USA at the right time, without overstay.  Since the current priority date is something like Dec 2014, and they can file for a visa then, and have their green card within a few months, it's just not common.  However the forgiven overstay for spouses of USC make them more ripe for the picking. 

[kaylaKo 5]

@alps34I also filed last October 28, 2016 based on Dates of Filling posted on USCIS bulletin. MY PD is August 2015 under F2A. But I'm still on working visa (H1B).. I'm sad how this turn out on your side but at the same time curios on what the denial letter contains. I'm becoming worried too.. oh life!

[NigeriaorBust 4,087]

Looking at the visa bulletin it looks like there was no visa number available so no ability to AOS . Because the AOS was denied the EAD if also dead now , so overstay is kicking in which may affect the ability to get a visa when the date is current in a few months.   I think your lawyer really screwed you up.   You would need an approved I130 and a current priority date to AOS as the spouse of an LPR.  Exactly when was the I130 NOA1 ?

[kaylaKo 5]

https://www.uscis.gov/green-card/green-card-through-family/green-card-family-member-permanent-resident

Get a Green Card While Inside the United States

If you are currently in the United States and are one of the specified categories of relatives of a permanent resident, you may be able to become a permanent resident in two steps.

• Step One –

  Quote

  Your permanent resident relative must file Form I-130, Petition for Alien Relative, for you and it must be approved

  . You must wait for your priority date in your immigrant visa category to become current.  Your priority date is the date when the Form I-130 is properly filed (with correct fee and signature) on your behalf by your U.S. permanent resident relative.  For more information on priority dates, see the “Visa Availability & Priority Dates” page.
• Step Two – Once the priority date in your visa category is current, you may file for adjustment of status with Form I-485, Application to Register Permanent Residence or Adjust Status. Adjustment of status is the process you go through to become a permanent resident. For more information, see the “Adjustment of Status” page.

 

@alps34Was your I-130 approved?